We’ve previously covered AFP v. Morel, the case where photographer Daniel Morel is suing AFP, Getty and downstream licenses for allegedly infringing on his copyrighted material. In a nutshell, he took some iconic photos following the Haiti earthquake. AFP sourced these photos through a social media account they thought was Morel but that was actually someone else’s. Morel sent numerous takedowns and threats, and AFP preemptively filed a declaratory relief lawsuit.

Morel’s victory on summary judgment as to liability was key, but since then there have been a few developments that were less than favorable for him:

scope of statutory damages: The court’s summary judgment order left somewhat ambiguous whether Morel could seek statutory damages against AFP and Getty separately. Copyright damages are awarded on a per work/per defendant basis, so the number of possible separately liable parties has a big influence on the damages spectrum. In an order granting reconsideration, the court says that Morel is only entitled to seek one statutory award (total) per infringed work. Morel argued that even if he was restricted to seeking one statutory award against defendants who could be held jointly and severally liable, the fact that Getty allegedly disregarded AFP’s “kill notice” meant that it engaged in an independent act of infringement and he should be able to seek damages separately from AFP for the pre-kill-notice conduct and from Getty for the post-kill-notice infringements. The court disagrees, saying that where there is a possibility of joint and several liability, a plaintiff can’t increase the number of possible awards by splitting up who she goes after. Separately, the court also said that no reasonable juror could conclude that Getty’s post-kill notice licensing constituted a separate and independent act of infringement. Instead of 16 possible statutory damage awards, he gets 8.

change in his representation: He was initially represented by Barbara Hoffman and he now has new counsel. The papers don’t detail what transpired between the two.

limitation in ability to seek DMCA damages: Throughout the course of litigation, Morel apparently provided generic responses to AFP’s and Getty’s discovery requests regarding DMCA damages. It appeared that he intended to seek two awards per photo, which landed him in the range of 16 statutory awards for DMCA violations (one for removal of copyright management information and one for false copyright management information). Along the way, this number increased drastically, and Morel purported to try to claim separate awards for each particular instance of downstream licensing and for a much greater quantity of photographs. However, in an order granting defendants’ motion to exclude this evidence, the court says that Morel’s belated disclosure of evidence regarding these violations precludes his right to seek damages. He’s stuck with 16 damage awards for possible DMCA violations.

settlements: He settled with a slew of parties along the way. Most recently, he settled with the Washington Post. It appears that the only parties remaining in the litigation on the other side are Getty and AFP.

What remains at stake:

8 awards for copyright infringement (ranging from $750 to $30,000 per; in the event he proves willfulness, this amount goes up to between $750 and $150,000) [he can elect to recover “actual damages,” but to date the focus has been on statutory damages]

16 awards for DMCA violations, where the damages range from 2,500 to 25,000

attorneys’ fees

Given the small number of cases that go to trial, it is surprising to see this one not have resolved already. Perhaps Mr. Morel’s settlement demands are on the high side; it’s possible AFP feels invested, having already spent what must surely be in the mid-six figures, if not more.

Regardless of how things turn out, AFP and Getty will have to pay some amount of damages. AFP and Getty will probably have some wrangling regarding allocation of liability, both between themselves, and among the various downstream licensees (one or both may try to invoke coverage from their insurance policies). All of this depends on the operative contractual language, but it’s tough to believe that everything has been resolved between the various defendants. (This will take place at all in a separate case.)